11
EW NEWS & OPINION
Month 2015
manner in which physicians treat
and bill Medicare beneficiaries
without violating the rights of either
the beneficiaries or physicians.
Conclusion
Despite clear guidance from CMS
and the courts rejecting the idea
of the fourth option, there are still
those who think such an option
exists for treating Medicare pa-
tients outside the system while still
allowing patients to receive reim-
bursement from the program. We
hope this article has clarified that
the fourth option does not exist and
creates liability risk for non-enrolled
physicians who provide and bill for
Medicare covered services without
opting out. EW
References
1. 42 U.S.C. § 1395w-4(g)
2. 42 U.S.C. § 1395a
3. Id. § 1395w-4(g)(4). There are rare circum-
stances where an enrolled physician who has
not opted out of Medicare is not required to
submit a claim if the beneficiary, acting under
his or her own free will, refuses to authorize
such submission. But this exception only
applies if the physician is otherwise enrolled
in Medicare and submitting claims on behalf
of the physician's patients. But the limiting
charge still applies to such claims. CMS Medi-
care Benefit Policy Manual, Ch. 15, § 40.
4. 42 U.S.C. §§ 1395w-4(g)(4)(B), 1395u(p)(3).
5. Id. §1395a(b)(4)
6. 42 U.S.C. § 1395w-4(g)(1).
7. Section 1395u(i)(2)
8. 42 U.S.C. §1395w-4(g)(1)(B)
9. CMS Medicare Benefit Policy Manual, Ch.
15, §40.13
10. Letter from Marilyn Tavenner, CMS Acting
Administrator, to James Madara, AMA Chief
Executive Officer (Mar. 15, 2012)
11. 901 F. Supp. 2d 19, 41-43 (D.D.C. 2012),
aff'd sub nom. Ass'n of Am. Physicians &
Surgeons v. Sebelius, 763F. 3d 468 (D.C. Cir.
2014).
12. Id at 42.
Editors' note: Mr. Portman and Ms.
Burke are health law attorneys with
Powers Pyles Sutter & Verville PC,
Washington, D.C. Mr. Portman also
serves as legal counsel for ASCRS.
Contact information
Burke: Rebecca.Burke@PPSV.COM
Portman: Rob.Portman@PPSV.COM
3360 Scherer Drive, Suite B, St. Petersburg, FL 33716
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